THE FIRST AMENDMENT ON THE BATTLEFIELD
The First Amendment on the Battlefield: A Constitutional Analysis of Press Access to Military Operations in Grenada, Panama and the Persian Gulf
By David A. Frenznick (First appeared at 23 Pac.L.J. 315(1992))
Freedom of the press means freedom to gather news, write it, publish it, and circulate it. When any one of these integral operations is interdicted, freedom of the press becomes a river without water.1
This Article addresses the rights of the press and the public under the First Amendment of the United States Constitution to demand access to American military operations. Part I of this Article examines the history of the war correspondent beginning with the American Revolution, with primary emphasis on the Vietnam War, the invasion of Grenada, the invasion of Panama, and the Persian Gulf War.2 Part II discusses several First Amendment issues arising in the context of the battlefield, with primary focus on the doctrine of prior restraint, the right of the public to receive information, and the developing right of media access.3 Finally, Part III concludes that the press may claim a First Amendment right of access to the battlefield and that the military must affirmatively facilitate the exercise of this right.4
I. THE TRADITIONAL ROLE OF THE PRESS IN WARTIME:
A HISTORICAL PERSPECTIVE
A tradition of cooperation between the military and the press can be documented as far back as the Civil War.5 While some commentators dispute this claim of traditional cooperation and openness,6 it is undisputed that journalists have always played a pivotal role in providing the public with combat-related information. If such press involvement has rendered the battlefield "traditionally open," the press may have a First Amendment right of access to American military operations.7
A. From The American Revolution To The Vietnam War
During the American Revolution, newspapers were largely unorganized and were unable to cover the war in a systematic fashion.8 As a result, newspapers derived their information from letters and messages from soldiers stationed at the front.9 This lack of organization continued through the War of 1812.10 It was not until 1846, during the Mexican-American War, that newspapers became technologically capable of providing wide coverage of the battlefield.11 Thus, the modern war correspondent was born.
The reporters and artists who covered the Civil War enjoyed extraordinary journalistic freedom.12 Although these journalists incurred the wrath of military commanders and even President Lincoln,13 the government generally afforded them liberal privileges.14 Despite several instances of military suppression of newspapers15 and some attempts at censorship,16 the press was generally able to publish everything it learned about the war.
During the Spanish-American War in 1898, the press used the telegraph to transmit stories quickly to stateside editors.17 Journalists became proficient at gathering news, and the military cooperated by placing few restrictions on the press.18
During World War I, military officials assigned reporters to individual commanders, and these reporters were afforded limited freedom of movement.19 Prepublication censorship prevailed.20 In addition, military officials had the authority to revoke any journalist's accreditation if he or she released stories without prior military clearance.21 Although during the early part of World War I reporters were not permitted to cover the front, by 1918 American journalists enjoyed unrestricted access to these areas.22
World War II was the golden age for war correspondents.23 Reporters such as Ernie Pyle reached millions of American readers with stories from all over Europe and the Pacific.24 Prepublication censorship was the rule,25 yet it applied only to military matters and did not preclude military commanders from talking freely with reporters.26 Military officers were readily accessible on the various fronts, and reporters had complete freedom of movement.27 Correspondents even accompanied the troops on many dangerous missions, all with the approval and support of the government.28
The harmonious relationship between the military and the press29 deteriorated during the Korean and Vietnam wars.30 In the early years of the Korean War, military authorities simply expelled reporters if they were displeased with their stories.31 This led to the imposition of full military censorship by General Douglas MacArthur in 1951.32 All editorial copy had to be approved by military censors prior to transmission to the correspondent's newspaper or magazine.33 This broad military control nevertheless permitted reporters liberal access to the battlefronts.34
During the Vietnam War reporters were permitted to observe military activity throughout the combat theater.35 This freedom was coupled with a form of censorship imposed at the source: military authorities simply refused to give any information to distrusted journalists.36 Military officers were convinced that biased reporting caused the American public's opposition to the war, and this belief fostered the military's hostility toward the press.37 Thus, it is not surprising that by the end of the Vietnam War, deterioration of military-press relations reached its apogee.38
B. The Invasion Of Grenada
The hostility between the military and the press resurfaced in 1983 when American troops spearheaded an invasion of the small Caribbean island of Grenada on October 25.39 Over 700 Army Rangers, 1,200 Marines, and various contingents from seven Caribbean nations participated in the invasion.40 It was the first major American milit-ary action since the Vietnam War.41
The American public learned of the invasion of Grenada on the day it occurred when President Ronald Reagan declared in a televised news conference that the United States had "no choice but to act strongly and decisively" to oppose "a brutal gang of leftist thugs" who had violently taken over the island on March 12, 1983, killing Grenadian Prime Minister Maurice Bishop.42 Shortly after President Reagan's announcement, nearly 400 reporters converged upon Barbados.43 Faced with the refusal of the military to assist them in reaching the island, several reporters chartered their own boats in an effort to reach the fighting.44 It is reported that military ships and aircraft forcibly turned back at least two press boats and a plane carrying reporters en route to Grenada.45 Military commanders warned other journalists that military personnel had been directed to fire upon anyone attempting to obtain access to Grenada.46
With coverage efforts stymied, reporters relied upon reports from ham radio operators in Grenada, reports broadcast by Radio Havana, and Department of Defense press releases.47 Four of the seven reporters who were already on the island accepted an offer from the military to go aboard the U.S.S. Guam, which was anchored just off the Grenadian coast, to file their reports from the ship.48 When the reporters arrived on board, the ship's commander refused to allow them use of the communications equipment, and would not let them leave the ship for two days.49
On October 27, 1983, two days after the invasion, the U.S. military finally allowed a group of fifteen reporters to visit the island.50 However, these reporters were unable to file their reports that day because their return flight was delayed, ostensibly due to excess air traffic.51 Consequently, when President Reagan appeared on national television that evening to explain the invasion, the American public had seen only brief film clips produced and edited by the military.52 The public had not heard any reports from independent eye witnesses.53
On October 28, 1983, the United States military allowed another small contingent of reporters to visit Grenada.54 The very next day, the Senate voted to end the press restrictions.55 Finally, on October 30, 1983, five full days after the landing of U.S. troops on Grenada, military authorities granted almost unlimited media access to the island.56
Shortly after the Grenada operation and the resulting criticisms by the media,57 press representatives requested a formal Department of Defense review of military press access policies.58 The Department formed a panel to study media complaints and make necessary recommendations to the government.59 The panel was headed by a retired major general and was comprised of both military and press representatives.60 Based upon the panel's recommendations, the Pentagon created a press pool designed to accompany the troops on any surprise operation.61
C. The Invasion Of Panama
The press pool system underwent its first test in a combat situation in December 1989, when American troops invaded Panama to oust dictator Manuel Noriega.62 The pool, consisting of newspaper, television, radio, wire service, and magazine representatives,63 departed for Panama aboard a military aircraft at approximately 11:30 p.m. on December 19, 1989.64 By the time the pool arrived in Panama, around 5:30 a.m. on December 20, the invasion had been under way for about four hours.65
Upon arrival, the pool was stranded at the airport for three hours because the military did not have any available transportation.66 Meanwhile, military authorities prevented nonpool reporters from arriving in chartered aircraft because the airports were declared unsafe.67 As a result of these delays, the press was unable to cover the crucial initial hours of the invasion.68
Early television coverage of the invasion was limited to photographs provided by the Pentagon.69 Pool television materials did not begin arriving until 5:40 p.m. on December 20, about five hours later than anticipated by media executives.70 By the time the military allowed nonpool reporters to land their aircraft late in the evening on December 21,71 President Bush had already declared the operation "pretty well wrapped-up."72
News organizations were highly critical of the military's handling of the pool system in Panama.73 Pete Williams, the chief Pentagon spokesperson, citing "incompetence" as the reason for the limited access afforded to the press in the initial hours of the invasion,74 commissioned a study of the events.75 The resulting report blamed Secretary of Defense Dick Cheney for activating the pool too late and for rejecting a plan proposed by public affairs officials at the United States Southern Command in Panama to organize a pool from reporters already in Panama to cover the beginning of the invasion.76
D. The Persian Gulf War
Strained by the failure of the pool system in Panama, relations between the press and the military degenerated further with the advent of the Persian Gulf War. On January 3, 1991, with the United Nations deadline for Iraqi withdrawal from Kuwait approaching on January 15, the Pentagon distributed proposed regulations for press coverage in the event of war.77 Under the proposed regulations, reporters would be restricted to travelling in a limited number of pools accompanied by military escorts at all times.78 Moreover, under the proposed regulations all reports would be subject to military censorship in the form of a "security review" by information officers in the field.79 The proposed regulations imposed several additional limitations.80
In response to complaints from the press, the Pentagon eliminated some of the restrictions before officially adopting the regulations on January 9, 1991.81 Nevertheless, the two most criticized restrictions--the pool system and the security review--remained,82 making the Persian Gulf press restrictions the most strict in American journalistic history.83
The official press regulations went into effect on January 17, 1991, when the American bombardment of Iraq and Kuwait began. Pools were deployed to watch aircraft take off and return, and some reporters were allowed to speak with returning pilots.84 However, military officials released very few details about the progress of the air war,85 and some censorship occurred.86 Members of the press articulated complaints regarding the lack of information made available to reporters and the delays in reporting caused by the security review system.87 By the end of the first week of the war, the press was demanding an end to the regulations.88
With the advent of ground fighting in late January 1991, the pool system began to collapse.89 No pool reporter witnessed the fighting in Khafji, but correspondents who skirted the pools provided several accounts of the battle.90 As ground fighting continued, more reporters and photographers circumvented the organized pools.91 By February 12, 1991, more than two dozen journalists had been detained by the military for violating the pool restrictions.92
On February 23, 1991, two hours after the U.S. ground offensive began, the Pentagon imposed a complete news blackout.93 Regular briefings in Washington and Riyadh were suspended and dispatches from the pools were delayed, ostensibly for security reasons.94 In response to the blackout, hundreds of reporters travelled into the desert on their own, in violation of the pool restrictions.95 Some of these journalists provided the first accounts of the ground war.96
The news blackout did not last long. On the morning of February 24, 1991, Defense Secretary Dick Cheney gave permission for General H. Norman Schwarzkopf to provide a briefing to reporters in Riyadh regarding the early success of the offensive.97 Soon thereafter, dispatches began to arrive from pool reporters in the field.98 One week later, with the informal cessation of the war on March 4, 1991, the Pentagon lifted all press restrictions in the Persian Gulf.99
E. Legal Challenges To Military Restrictions On Press Access
Members of the press have raised two significant legal challenges to press restrictions employed by the government in recent military conflicts. Shortly after the invasion of Grenada, Hustler Magazine publisher Larry Flynt filed suit in federal district court against Secretary of Defense Caspar Weinberger.100 Flynt alleged that the exclusion of Hustler Magazine reporters from the initial stages of the Grenada operation violated the First Amendment.101 The court dismissed the suit as moot, observing that the invasion of Grenada was a unique event and therefore not capable of repetition.102 The court of appeals unanimously affirmed the dismissal.103
The second challenge occurred recently when members of the media challenged the press restrictions employed during the Persian Gulf War. On January 10, 1991, a group of news organizations and writers, led by The Nation Magazine, filed suit against the Department of Defense (DOD) in federal district court.104 The plaintiffs claimed that the pooling regulations infringed upon news gathering privileges protected by the First Amendment.105 On a motion to dismiss by DOD, the court determined that the plaintiffs had surmounted the jurisdictional barriers of lack of standing,106 the political question doctrine,107 and mootness.108 The court held, however, that the right of access claims were not sufficiently focused to permit the court to exercise its discretion in granting declaratory relief.109
By refusing to address the merits in both of these press challenges, the courts left unanswered important constitutional questions raised by military restrictions imposed on the press. Specifically, the courts failed to determine precisely what rights the First Amendment guarantees to the press in relation to American military operations, and whether the press has a First Amendment right of access to the battlefield. The remainder of this Article examines these issues, with primary focus on the doctrine of prior restraint, the public's right to receive information, and the developing right of access.
II. RESTRICTIONS ON PRESS ACCESS TO THE BATTLEFIELD:
A VIOLATION OF THE FIRST AMENDMENT
Traditionally, the press has used the First Amendment as a "shield" against government intrusion into the editorial or publication process by arguing that the right to publish is protected by the doctrine of prior restraint. Recently, however, the press has begun to use the First Amendment as a "sword" to force access to previously restricted areas by relying on the developing right of access. In analyzing the constitutionality of the restrictions on press access to the battlefield in Grenada, Panama, and the Persian Gulf, both functions of the First Amendment are necessarily implicated.
A. Prior Restraint -- The Constitutional Shield
1. Historical Context
Under the constitutional doctrine of prior restraint, the government may not restrain publishers and broadcasters from disseminating information except under the most extraordinary circumstances.110 Since the landmark decision of Near v. Minnesota111 in 1931, courts have used the doctrine of prior restraint to shield publishers from prepublication governmental intrusion. Although some scholars contend that the doctrine of prior restraint is outdated,112 recent decisions of the Supreme Court of the United States demonstrate that the doctrine is still viable.113
In Near, the Court struck down a statute authorizing the state of Minnesota to stop publication of any newspaper judged "malicious, scandalous and defamatory."114 In upholding the newspaper's right to publish, the Court noted that to grant the government authority to prevent publication would create a serious public evil.115 The Court held that the government must defer any sanction for publication of libel until after the press has exercised its First Amendment right to publish.116
The First Amendment right to publish, however, is not unlimited. In dicta, the Near court indicated that the government could enjoin publications that threatened national security or were obscene.117 However, subsequent cases indicate that the Court has narrowly construed the national security exception.118
In New York Times Co. v. United States119, the so-called ``Pentagon Papers'' decision,120 the Court applied the doctrine of prior restraint and refused to enjoin publication of illegally obtained classified information.121 Although every member of the Court expressed his views separately, each of the six concurring justices and three dissenting justices "tacitly or explicitly, accepted the Near . . . condemnation of prior restraint as presumptively unconstitutional."122 Additionally, the plurality rejected the government's attempt to justify the restraint as a threat to national security.123 To justify even the issuance of an interim restraining order,124 wrote Justice Brennan, the government must allege and prove that publication must inevitably, directly, and immediately cause the occurrence of an event similar to imperilling the safety of a transport already at sea.125
Five years after the Pentagon Papers case, the Supreme Court of the United States, in Nebraska Press Association v. Stuart,126 unanimously rejected a trial court order restricting publication or broadcast of accounts of a criminal defendant's confessions or admissions in a murder case.127 In so holding, the Court balanced the accused's Sixth Amendment right to a fair trial and the press' First Amendment right to publish, reiterating the result reached in New York Times Co. v. United States.128 The Chief Justice stated that" [t]he thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement of First Amendment rights."129 Thus, the Supreme Court decisions in the Pentagon Papers and Nebraska Press Association cases establish that the government must surmount formidable obstacles before any prior restraint of publication will be constitutionally justified.
2. Prior Restraint Applied to Prevention of Reports from the Battlefield
On the battlefield, a prior restraint would occur if the military prevents journalists, who are legitimately in the area prior to the outbreak of hostilities, from reporting news from the battlefield. While it appears that this did not occur during the invasion of Panama130 or the Persian Gulf War,131 it did occur during the invasion of Grenada. There, the military removed four of seven journalists who had reached the island before the invasion and held them incommunicado.132 Perhaps the initial removal was the result of a misunderstanding,133 yet the journalists were detained for more than 48 hours.134 The length of detention indicates that the military desired to, and indeed succeeded in preventing immediate publication of legally gathered information.135 This detention was a prior restraint under Near and its progeny.136
It is unlikely that the government can justify its detention of the journalists in Grenada under the national security exception recognized in the Near and New York Times cases.137 The invasion had already been publicly announced by the President when the military transported the four journalists to the ship.138 Therefore, the reporters' information could not have jeopardized the secrecy of the invasion. Moreover, a less restrictive alternative to detention was available.139 The military had ample opportunity to censor the correspondents' copy before allowing them to use the ship's communication equipment or transporting them to Barbados, where they could have filed their stories on civilian equipment.140 The failure of the military to exercise this less restrictive alternative negates any argument supporting the national security exception.
Given the extreme judicial antipathy toward prior restraints, even in the national security context, it is likely that the detention of the four journalists during the early stages of the invasion of Grenada would be held a violation of the First Amendment. A more difficult issue arises, however, with regard to denial of press access to the battlefield once hostilities have commenced. Specifically, the issue is whether the press has a First Amendment right of access to cover American military operations? To answer this question, the relatively recent origins of the developing right of access must be explored.
B. The Public's Right To Receive Information and the Developing Right Of Access
1. The Public's Right to Receive Information
Courts and commentators have referred to the public's right to receive information as the core function of the First Amendment.141 Indeed, the authors of the First Amendment considered the role of the press in the interchange of information and ideas to be of pivotal importance.142 However, an informed public cannot exist without a free flow of information.143 The Court has consistently recognized this function of the press with approval.144
Our society has become so complex that it is now impossible for an individual acting alone to obtain information about governmental affairs.145 Thus, it is reasonable for the public to depend upon the press to gather information and to present that information to the public in an understandable form.146 These considerations have led the Court to recognize that the press functions as an agent of the public.147
Similar to the right of the press to publish information, the right of the public to receive information is not unlimited. For example, a United States citizen does not have an absolute right to travel to Cuba to inform himself of conditions there.148 Nor do American academics have an absolute First Amendment right to hear a speech by a marxist professor who was denied a visa to enter the United States.149
The Supreme Court evaluates restrictions on the flow of information by applying a balancing test. The public interest in acquiring the information is weighed against the government's interest in regulating the conduct.150 Courts have applied this balancing test when the government has restricted the free flow of information from grand jury proceedings,151 pretrial criminal proceedings,152 criminal trials,153 judicial investigations,154 removal hearings,155 and libel cases.156 The recognition of a public right to receive information has led the Supreme Court, by use of the balancing test, to recognize a First Amendment right of access in a few limited situations where the need for information is great, such as in a judicial proceeding. This balancing test also supports recognition of a First Amendment right of access to the battlefield.
2. Access to Judicial Proceedings
In analyzing the right of media access to the battlefield, it is necessary to consider other instances where the media has successfully asserted a First Amendment right to gather information. The decisions of the United States Supreme Court concerning access to judicial proceedings provide useful analogies to the battlefield inquiry.
Commentators generally link the beginning of the modern push toward recognition of a First Amendment right of media access to the Supreme Court decision in Branzburg v. Hayes.157 In Branzburg, the Court considered whether newspersons have the right to refuse to respond to a grand jury subpoena.158 The defendant newspaper claimed "that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining information."159 Although the Court ruled against the newspaper, the majority opinion noted:
"We do not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated."160
Although the Branzburg Court recognized the existence of at least some First Amendment protection of news gathering, the Court did not define the constitutional limits of this protection.
In 1979, the Supreme Court considered the issue of public and press access rights to pretrial proceedings in Gannett Co., Inc. v. DePasquale.161 In Gannett, the Court held that the Sixth Amendment does not guarantee the media a right to attend such proceedings when the trial judge, the prosecutor, and the criminal defendant agree that closure is necessary to ensure a fair trial.162 The Court, however, did not consider access rights under the First Amendment.163
Largely as a result of misapplication of Gannett by the lower courts,164 the Supreme Court quickly granted certiorari to decide whether the public and press had a First Amendment right of access to criminal trials. In Richmond Newspapers, Inc. v. Virginia,165 seven of the nine justices agreed that the press and public do have such a constitutional right.166 The Chief Justice, writing for the plurality, placed special emphasis on the historical openness of the courtroom.167 He concluded that a right of access to places traditionally open to the public, such as criminal trials, is guaranteed by the First Amendment.168
Two years after Richmond Newspapers, the Supreme Court solidified this First Amendment right of access in Globe Newspapers Co. v. Superior Court.169 In Globe Newspapers, a majority of the Court agreed for the first time on the existence of a constitutional right of media access to criminal trials.170 The Court reasoned that the First Amendment right of access is based upon two features of the criminal justice system: (1) The historical openness of the criminal trial; and (2) the significant role of the right of access in the functioning of the judicial process and the government as a whole.171 The Court held that any attempt to deny this right of access in an effort to inhibit the disclosure of sensitive information must be necessitated by a compelling governmental interest and narrowly tailored to serve that interest.172
The presumption of openness to media access was extended to all parts of the criminal trial in Press Enterprise Co. v. Superior Court.173 Applying the standard announced in Globe Newspapers, a majority of the Court174 overturned a trial court's order denying press and public access to the voir dire process in a murder case.175
The Supreme Court has recognized that news gathering merits some First Amendment protection.176 Further, the First Amendment guarantees access to all parts of a criminal trial.177 This right of access is based upon the traditional openness of criminal trials and the need for free access to the judicial process and the government as a whole.178 The Court has permitted restrictions on this right only in the most compelling circumstances, and even then only when no less restrictive alternatives are available.179 These established principles are the basis for extending the right of media access to the battlefield.
3. Access to Prisons
In addition to the judicial process, the right of media access has been applied to prisons, a situation more analogous to the battlefield. Similar to the battlefield, prisons have no historical tradition of public openness, and the government interest in regulating access is high.180 Accordingly, when reviewing prison administrative decisions, the Court will generally accord judicial deference similar to that accorded to the military.181
In the companion cases of Pell v. Procunier182 and Saxbe v. Washington Post Co.,183 the Supreme Court, for the first time, considered whether the right of the media to gather news established a constitutional right of access to government-controlled information.184 These cases involved the right of the press to conduct face-to-face interviews with prison inmates.185 The press claimed a constitutional privilege of special access to government-controlled information in the absence of a substantial governmental justification for withholding it. Specifically, the press attacked prison rules which prohibited press contact with individual prisoners.186
The Court concluded that the prison regulations187 did not violate the First Amendment.188 The majority refused to apply the balancing test and weigh the interests of the government against those of the press, as it normally does when the press asserts a restriction on the free flow of information.189 Rather, the Court simply stated that interest balancing was unnecessary because no discrimination existed inasmuch as prison officials had barred both the press and the public.190 The majority concluded that its recognition of some limited First Amendment protection for news gathering did not create an affirmative duty on behalf of the government to furnish the press with information not available to the general public.191
Both the Pell and Saxbe majority opinions relied heavily upon the availability of alternative means of acquiring information about prison conditions.192 The Court observed that prison officials had accorded both the press and the public some opportunity to observe prison conditions. Further, the Court noted the lack of any evidence indicating that prison officials intended to conceal information from the media.193
Four years later, the Court faced a similar media access claim to a penal institution in Houchins v. KQED.194 Houchins is distinguishable from Pell and Saxbe, however, because in Houchins, prison officials denied both the press and the public access to information about prison conditions,195 creating a news blackout similar to that imposed by the military in Grenada196 and, to a lesser extent, in the Persian Gulf.197 Thus, alternative means of acquiring information, the Court's primary rationale for denying access in Pell and Saxbe, were unavailable to the press in Houchins.198
Houchins involved a media request to tour and photograph a California jail.199 The press specifically wanted to view the controversial Greystone building where one court had found that substandard living conditions existed.200 Prison officials denied the media's request and a television station subsequently brought suit.201
The Supreme Court, in a three-one-three decision, with Justice Stewart writing the crucial concurrence, reversed the district court's order requiring access.202 The Chief Justice, joined by Justices Rehnquist and White, noted the importance of information concerning prison conditions and recognized that the media generally acts as an agent of the public in acquiring the information.203 Nevertheless, the plurality found no constitutional basis for requiring access to the jail.204 Justice Stewart reasoned that there is no special right of media access to government-controlled information, but argued in favor of a more flexible access policy to accommodate the practical distinctions between the press and the public.205 Indeed, Justice Stewart would have upheld a more limited access order,206 but agreed with the Court's judgment because he believed the lower court's order was too broad.207
Justice Stevens, with Justices Brennan and Powell, dissented, arguing for the recognition of a media right of access. The dissent noted that a core objective of the First Amendment is the preservation of a free flow of information.208 Therefore, they reasoned, information gathering is entitled to constitutional protection.209
The prison cases add little solidity to the unsettled area of First Amendment jurisprudence regarding media access to the battlefield. In Pell, a bare majority of the Court found no special media right of access, but seemed to limit its holding to the particular facts of the case.210 Prison officials arguably provided sufficient access to the prison to allow the public to inform itself about conditions there.211 When one considers that all the press lost in the Pell decision was the right to face-to-face interviews with specific prisoners, the decision may be justified.
In Houchins, however, prison officials denied both the public and the press all reasonable means of informing itself of conditions at the prison.212 In that case, no particular opinion commanded a majority of the Justicies. Houchins is important because it indicates that most of the members of the Court at that time differentiated between reasonable access to important information and no access whatsoever. That difference is crucial when analyzing the denial of press access to the battlefield in Grenada, Panama, and the Persian Gulf.
C. Applying The Right Of Access To The Battlefield
Although the Supreme Court has never expressly articulated a definitive test for invoking the right of media access, the Court's decisions in Richmond Newspapers and Globe Newspapers suggest a three-part test:213 (1) the constitutional claimant must show that the area has historically been open to the press and general public;214 (2) the right of access must be significant in the functioning of the process in question and the government as a whole;215 and (3) assuming the first two tests have been satisfied, access may be denied only if the government establishes that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.216 Application of this test to the battlefield suggests that the press has a valid right of access under the First Amendment.
On the battlefield, the first prong of the test is the most difficult to satisfy. The press must show a tradition of public openness to the battlefield. History supports an assertion of press openness, based on the access war correspondents have historically enjoyed.217 Yet, the battlefield has never been open to members of the public.
The Supreme Court has recognized the key role of the press in contributing to "an uninhibited market-place of ideas in which truth will ultimately prevail."218 Further, a majority of the Court has recognized the quasi-public role of the press in disseminating information.219 Indeed, the Court has acknowledged that the press acts as an agent of the public.220
Since the press acted as the agent of the public when it accompanied military commanders and troops into battles throughout history, a tradition of public openness has been established. The use of agency principles to "create" a tradition of public openness merely recognizes the reality of the media's role in society.221 The government affirms this role, as well as the press' agent status, whenever it allows the press access to places inaccessible to the general public.222 Thus, the first prong of the right of access test is satisfied on the battlefield.
The second prong of the right of access test asks whether access to the process in question plays a significant role in the functioning of that process and the government as a whole.223 In regard to the battlefield, the question is whether public scrutiny is significantly necessary to military operations. The press can convincingly argue in the affirmative. The military depends on public financial support for its existence224 and constantly utilizes the press to influence public opinion and create support for its policies. Thus, the military itself has recognized the functional significance of public scrutiny.
In Globe Newspapers, the Court found that public scrutiny of criminal trials fosters the appearance of fairness and safeguards the judicial process.225 A similar argument can be made about press access to military operations. Such access fosters trust in our government and helps to ensure that the government's military power is used justly.226 Thus, press access to military operations plays a significant role in the functioning of the military and the government as a whole. Consequently, the second prong of the right of access test is satisfied.
Since the first two prongs of the right of access test are satisfied in the case of military operations, the press should be able to claim a general First Amendment right of access to the battlefield. Under the third prong of the test, however, the military may still bar reporters from the battlefield in specific instances if it has a compelling interest in doing so, and if no less restrictive alternatives are available.227 A determination of these requirements mandates further analogy to the courtroom access cases.
A majority of the Court has never articulated definitive standards for closure of the courtroom under the third prong of the access test. However, Justices Powell and Blackmun provided closure tests in the Gannett decision.228 Further, the Court of Appeals for the Fifth Circuit adopted a test which is a combination of both the Powell and Blackmun tests in United States v. Chagra.229 This test may be easily adapted to the context of military operations to test the constitutionality of any denial of press access to the battlefield. Specifically, under the adapted Chagra test, the military may overcome the First Amendment right of access if: (1) National security will be prejudiced by allowing the press access to the battlefield; (2) alternatives to denying access cannot adequately protect national security; and (3) denial of access will be effective in protecting against the perceived danger to national security. By applying this test to the recent military operations in Grenada, Panama, and the Persian Gulf, the boundaries of the right of access to the battlefield may be identified.
1. The Right of Access in Grenada
The Grenada invasion was the first major American military action to follow the Vietnam War.230 More importantly, the exclusion of the press from Grenada constituted the most extensive denial of press access to the battlefield in American history. Not only did the military fail to inform the press before the invasion began, but the military excluded the press from accompanying the invasion force. Further, the military refused to assist, and in some cases, actively prevented reporters from visiting Grenada until two days after the invasion began.
In the wake of the invasion, the military attempted to justify its decision not to inform the press by claiming that the Grenada invasion was a commando-style rescue raid, similar to the American hostage rescue attempt in Iran.231 According to the Pentagon, the possibility of security breaches prevented the military from alerting the press in advance of the invasion.232
Under the test adapted from Chagra, this claim amounts to an assertion that national security would have been prejudiced by informing the press.
In order for the military's decision to deny media access in Grenada to be constitutionally justified, based upon a purported threat to national security, there must have been no less restrictive alternates available at that time which would not have posed a security threat. Although some less restrictive alternatives may have been available in advance of the invasion, such as informing the press but instructing them to withhold the information until after the invasion began, the military could convincingly argue that such alternatives would not have adequately ensured the surprise of the operation.
However, the claim of a threat to national security does not justify the exclusion of the press from accompanying the invasion force. Even if the invasion of Grenada was comparable to the attempted hostage rescue in Iran,233 this similarity does not explain why the military did not allow a small group of correspondents to witness the invasion. Apparently, the military had enough time to assemble and brief military photographers, and enough room on the planes to transport them, along with their equipment, with the initial assault force.234 Certainly, members of the press could just as easily have accompanied the troops. Any interest in national security could have been protected by censoring the content of reports from the field or by controlling the timing of the reports. These less restrictive alternatives repudiate any claim that exclusion of the press from the Grenada invasion force was justified under the adapted Chagra test.
Finally, the military's refusal to allow journalists access to Grenada for two days was unjustified. The Pentagon claimed that after the invasion began, logistical problems prevented the military from transporting the press to the island.235 It is questionable whether concerns with logistics qualify as an interest in national security under the adapted Chagra test. Yet, even if the refusal to help the press reach the island was justified, actively preventing journalists from independently travelling to Grenada was not. After the President's public announcement of the invasion, the need for complete secrecy disappeared. After that time, the military had no valid security reason for the complete exclusion of journalists that continued until two days after the invasion.
In evaluating the governmental interest in denying access to Grenada, it is important to consider the deference the Court traditionally accords military decisions.236 The Court weighs this traditional deference to the military against the availability of alternative means of acquiring information.237 In Grenada, no alternative means were available to the press for gathering information. Further, evidence indicates that the military may have excluded the press in an attempt to conceal the conditions in Grenada or simply to frustrate media efforts.238 Judicial deference to the military under these conditions is unlikely. Therefore, the military's treatment of the press during the invasion of Grenada amounted to a violation of the constitutional right of media access.
Based upon the foregoing analysis of the Grenada invasion, the basic dimensions of the right of access to the battlefield are clear. In essence, the right of access prohibits the military from completely excluding the press from a military action, as occurred during the Grenada invasion. In virtually every operation, whether intended as a surprise or not, some less restrictive alternative will exist.239 Indeed, the press pool system created in response to media complaints in the wake of the Grenada invasion is one example of a valid, less restrictive alternative. By establishing the press pool, the military supposedly ensured that the constitutional right of press access would not be violated in future operations. However, an analysis of how the pool system performed in Panama reveals that the military continues to infringe upon the First Amendment right of access to the battlefield.
2. The Right of Access in Panama
In theory, by utilizing a press pool during the invasion of Panama, the military employed a less restrictive alternative to the unconstitutional denial of media access that occurred in Grenada. In practice, however, the pool proved to be just as restrictive, at least during the crucial initial hours of the invasion.240 Arguably, the failure of the pool system in Panama resulted from nothing more than "incompetence."241 Yet some evidence suggests that the failure resulted from willful mismanagement by the Pentagon.
Although the military did transport the pool reporters from Washington to Panama, the pool did not accompany the troops, as had occurred during prior military exercises.242 A delay in transportation occurred because of an "excessive concern with secrecy" on the part of Secretary of Defense Dick Cheney, who decided not to activate the pool until after the evening news on December 19, 1989.243 This decision may well have amounted to an unconstitutional violation of the right of access. By activating the pool too late, Cheney effectively denied the press access to the initial invasion. Moreover, he rejected a less restrictive alternative to this complete denial by rejecting a plan to form a pool from reporters already in Panama.
Additional mishandling of the situation occurred after the pool arrived in Panama, when the military failed to provide the pool with transportation. Combined with the exclusion of nonpool reporters from landing in the country and the late activation of the pool, this failure helped ensure that most of the hostilities in Panama occurred out of sight of the press. Thus, despite the use of the press pool in Panama, the military still denied the press access to the battlefield.
The events in Panama further define the boundaries of the right of media access. This right demands that the military do more than merely institute a press pool system. The military must also employ that system correctly, allowing the pool to cover all stages of a military operation. If the military cannot adequately accomplish these requirements, then nonpool reporters must be allowed access to the battlefield. Anything less constitutes a denial of access and a violation of the First Amendment.
3. The Right of Access in the Persian Gulf
In the Persian Gulf, the military once again mismanaged the press pool system. However, this mismanagement did not appear to rise to the level of a constitutional violation, as it did in Panama. Although the number of pool spots was limited, pool reporters were allowed access to most of the troops.244 While the security review system caused delays and resulted in some censorship, this system, like the censorship that occurred during the Korean War,245 permitted the military to allow the pool access to the troops. Although the military may have used the pool and security review systems to manipulate the news from the Persian Gulf, this manipulation did not constitute a First Amendment denial of press access to the battlefield.
More troubling than the inconveniences of the pool and security review systems, however, was the Pentagon's news blackout during the initial hours of the ground assault. This blackout probably rose to the level of a constitutional violation of the right of access. By suspending press briefings and delaying pool dispatches, the military effectively denied the press and the public access to any information whatsoever about the ground assault. This denial of access was comparable to the denial during the invasion of Grenada and to the initial hours of the invasion of Panama.
The news blackout during the Gulf War violated the constitutional right of access because, as in Grenada and Panama, less restrictive alternatives were available. The Pentagon admitted that its real concern was not about protecting any overall secrecy of the assault, but about concealing the location of U.S. Army troops in western Iraq.246 To ensure the security of this force, the military could have restricted or censored pool reports and pictures from pool members travelling with the troops. This less restrictive alternative to a total news blackout would have adequately protected the security interest involved, while allowing the press to report on the majority of Air Force, Navy, and Marine operations during the assault.247
The events in the Persian Gulf narrow the dimensions of the right of access to the battlefield. Although some members of the press would argue that the First Amendment contemplates unrestricted access to American military operations, restrictions on the press such as those applied in the Persian Gulf may actually survive a challenge of unconstitutionality. What will not survive such a constitutional challenge, however, is a blanket news blackout unjustified by national security interests. The military must narrowly tailor its news policies to allow the press access to as much of the battlefield as possible.
III. CONCLUSION
When American invasion forces landed in Grenada in October of 1983 unaccompanied by representatives of the independent press, a history of voluntary cooperation between the media and the military came to an abrupt end. The ensuing news blackout violated the First Amendment right of the media to access to the battlefield. In Panama, military mishandling of the press pool system established in the wake of the Grenada invasion effectively resulted in a denial of media access during the initial stages of the invasion. In the Persian Gulf, the military once again created an unconstitutional news blackout during the early part of the ground assault.
The events in Grenada, Panama and the Persian Gulf demonstrate the need for clear judicial guidelines establishing the permissible scope of media access to the battlefield. This Article suggests that the press, as an agent of the public, may claim a First Amendment right of access to the battlefield. This right of access prohibits complete exclusion of the press from a military action. While the military may impose reasonable restrictions on the media, such as the institution of a press pool, these restrictions must be administered in a manner which allows all stages of a military operation to be covered by at least some members of the media. Although the First Amendment does not guarantee unlimited access to the battlefield, press restrictions must be narrowly tailored to accomplish a legitimate purpose and to provide as much media access as is reasonably possible.
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